On June 15, 2012, the Obama administration announced a new policy concerning undocumented immigrants who are younger than age 31 and can prove they entered the United States as children. The Deferred Action for Childhood Arrivals (DACA) policy grants qualifying youth temporary relief from the threat of deportation. DACA also provides temporary employment authorization to qualifying individuals. This same category of youth are sometimes called “DREAMers,” after a bill known as the DREAM Act (Development, Relief, and Education for Alien Minors Act), which would go further and grant them legal status. The DREAM Act was introduced in the U.S. Senate on Aug. 1, 2001, but despite several attempts, it has never passed.

DACA is a complicated initiative that may reach approximately 1.7 million eligible individuals nationwide, with potential legal implications for their families, communities, and current or potential employers. There are no ready statistics for DACA-eligible youth in Wisconsin, but the Wisconsin Council on Children and Families estimates there are approximately 8,900 undocumented children in the state.1

This article provides a primer on DACA, including the policy’s purpose and eligibility requirements; legal and practical considerations attorneys and applicants must keep in mind; and employment- and immigration-law pitfalls for employers to avoid.

Legal Underpinnings and Overview of DACA

Secretary of Homeland Security Janet Napolitano announced DACA in a memorandum2 stating that the agency does not consider children brought to the United States to have intentionally violated U.S. immigration laws. According to the memo, childhood arrivals are a low enforcement priority compared to other categories of undocumented individuals. Accordingly, she instructed the Department of Homeland Security (DHS) and its divisions to use prosecutorial discretion to defer enforcement and removal actions in appropriate cases.3 The Napolitano memorandum articulates agency guidelines for exercising prosecutorial discretion in immigration-law enforcement.

DACA did not involve an executive order or any change to existing federal statutes or regulations. After President Obama announced DACA, erroneous references to an “executive order” were common, even in major news outlets. Part of the confusion is based on misunderstanding DACA as granting legal status or a path to citizenship. The executive branch, however, does not have the power to create such status or procedure. The Obama administration created the DACA policy using its inherent executive branch authority to implement immigration laws.4

DACA stops the clock, for an initial two-year period, on accrual of “unlawful presence.” When the agency grants an application, the grantee does not thereby obtain a nonimmigrant visa or a specific legal status, such as permanent residency. Instead, the government assures the grantee safety from deportation for two years. The grantee can get a driver’s license and Social Security number, and perhaps most important, work authorization for the two-year period.

Deferred action as a form of prosecutorial discretion is not new in the immigration context. Immigration officials have discretion when deciding whether to issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; or execute a removal order. Immigration agencies first used the term “deferred action” in 1975.5 DACA’s novelty is that it institutes an affirmative application process whereby beneficiaries identify themselves and request a deferral proactively; the process thus resembles a petition for immigration status or benefits.

Under DACA, three categories of undocumented youth may benefit from this prosecutorial discretion by DHS and its divisions, Customs and Border Protection (CBP), Citizenship and Immigration Services (USCIS), and Immigration and Customs Enforcement (ICE).6 Each category is treated slightly differently. Employment authorization is available for individuals receiving a deferral (categories 2 and 3 below). The three categories of DACA-eligible individuals (that is, undocumented people under age 31 who entered the United States as children) are the following:

Category 1: Individuals who are not in removal proceedings but have contact with DHS agents. In qualifying cases, DHS agents are to exercise prosecutorial discretion immediately to prevent low-priority individuals from being placed in removal proceedings in the first place.

Category 2: Individuals who are in removal proceedings but not yet subject to a final order for removal. In qualifying cases, ICE should defer the removal action for two years, with the deferral term being renewable. ICE’s Office of Public Advocate assists and allows individuals to identify themselves, so they can take advantage of this process. In situations in which the DHS’s Executive Office of Immigration Review identifies qualified individuals, ICE is to begin the deferral process immediately.

Category 3: Individuals who are not in removal proceedings, voluntarily identify themselves and request a deferral, are at least age 15, and pass a background check. Approved applicants will receive a renewable two-year deferral.

The USCIS had 60 days to begin implementing Napolitano’s policy directive. On Aug. 15, 2012, the agency began accepting DACA applications. Immigration lawyers expect the average time to process DACA requests will be four to six months. The USCIS reports that as of Feb. 15, 2013, 438,372 youth had applied for deferred action and approximately 423,000 applications had been approved.7 (See the accompanying sidebar for application requirements.)

Although DACA represents a potential opportunity for some undocumented youth, it carries grave risks for others. Applicants must understand that immigration officials will conduct a thorough background check and consider things the applicant might not expect, or records the applicant might not even be aware of, such as documentation of border encounters. Interaction with border officials, even when the individual was a young child who might not have been aware of what was happening; traffic citations; and other aspects of an applicant’s history may lead to a denial, or worse, the initiation of deportation proceedings. Because the damaging weight of certain facts is not necessarily obvious, some individuals could put themselves at heightened risk by voluntarily applying for DACA. Each determination is fact specific, and there is no affirmative right to any benefit. The USCIS considers many factors and exercises complete, unlimited discretion to grant or deny a deferral.

These realities make the guidance of a knowledgeable immigration attorney vital, not only to improve the chance of making a successful application but also to reduce the possibility of inadvertently making the applicant a target for deportation.8 Applicants who are certain their history does not pose any such problems can take comfort in the USCIS’s conditional statement that it will generally not share information from DACA applications with enforcement officials. The agency has stated that unless it suspects criminal activity, fraud, or a national security concern, it will not provide ICE with names of or other information about applicants or their families.

The next section outlines the category 3 voluntary application process. Because of the wide range of legal issues raised by a DACA application, it is not possible to describe all the nuances of the application process. The USCIS has developed a frequently-asked-questions page, which is a comprehensive and useful resource to review.9 The agency also has developed a webpage with important tips for filing the application.10

Voluntary Application for DACA

All required DACA application forms are available for free on the USCIS website. Applicants should avoid sites that sell immigration forms.11 Applications must be prepared carefully. Any mistakes necessitate starting fresh on a clean form, because white-outs interfere with the agency’s scanning process. The applicant must send the following:

Form I-821D (Consideration of Deferred Action for Childhood Arrivals);12

Supporting evidence as outlined in the instructions to Form I-821D, organized and labeled according to the guideline it meets;13

The most recent version of Form I-765 (Application for Employment Authorization);14

Worksheet I-765WS, used to establish economic need for employment authorization;15 and

An attorney or representative who helps prepare Form I-821D and intends to represent the applicant during the process must also submit Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.17 Attorneys and other representatives who assist applicants pro bono at a legal clinic or similar setting might not have to file Form G-28 but should consider providing a letter explaining their limited role in the application process.

One crucial issue attorneys and applicants need to consider is whether to disclose any previously used Social Security numbers. The applications for DACA and employment authorization both ask for Social Security numbers. The DACA application instructions do not specify whether the applicant must list any and all Social Security numbers used. The employment authorization application explicitly asks for “any” Social Security numbers the applicant has used. However, the frequently-asked-questions section of the USCIS website clarifies that the applicant should list only Social Security numbers officially issued to the applicant by the Social Security Administration.

Immigration attorneys have differing opinions on the import and interpretation of agency guidance on this question. Thus, applicants should carefully evaluate what the forms require and the consequences of providing or omitting such Social Security information.

Once the agency receives and reviews an applicant’s package, it issues a notice directing the applicant to provide identifying information through biometrics. This entails visiting a local agency office to be fingerprinted and photographed. If the applicant misses the biometrics appointment, the agency will deny the application.18

Eligibility Criteria for DACA Status

DACA status is granted on a case-by-case basis. To apply, an individual must meet six eligibility criteria.

A qualified applicant:

1) came to the United States as a child under age 16;

2) entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;

3) continuously resided in the United States for at least five years before June 15, 2012, was present in the United States as of June 15, 2012, and is present when making the DACA request;

4) is currently in school, has graduated from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. military;

5) has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety; and

6) was under age 31 as of June 15, 2012.

Implications for Employers

The DACA process might raise some uncomfortable questions for employers, such as the following: 1) Will the employer be implicated during the application process? 2) If a current or former employee was undocumented, did the employer violate the law by hiring the individual? 3) What should an employer do if a current employee, newly approved for DACA, asks to “update” his or her work-authorization documents and payroll information, perhaps implying that prior documents were fraudulent?

In turn, these questions raise legal issues concerning employer responsibility under employment and immigration laws. Employers also have to consider how to meet those obligations without slipping into practices that are discriminatory or abusive. The remainder of this article provides an overview of legal issues triggered by these situations.

DACA Application Process.The DACA application does not explicitly ask for the applicant’s employment information. However, employment records such as pay stubs or W-2 forms can help prove the DACA applicant has continually resided in the United States since June 15, 2007, and was present in the United States on June 15, 2012. The applicant might already possess such documents and could use them as supporting evidence without an employer’s knowledge. The applicant could also request copies of documents in the employer’s possession to use as supporting evidence.

When faced with such document requests, employers may be obligated under state or federal law to provide the information. For example, under Wis. Stat. section 103.13, employers are required to provide access to employment records that “are used or have been used to determine qualifications for employment, promotion, transfer, additional compensation, termination, or other disciplinary actions, and medical records.” Arguably, employers would not have to disclose payroll-related records that do not relate to qualifications for the employment actions listed in the statute. However, public employers may have to disclose those or additional employment records under open records laws.

The USCIS has stated that employment information will not be shared for civil immigration-enforcement purposes unless there is evidence of egregious violations of criminal statutes or widespread abuses. If there is no legal obligation to disclose records, employers should evaluate the legal risks of honoring or denying the request. Do the documents reveal egregious violations of criminal laws or widespread abuses? If they do not, then providing documentation should not be a cause for alarm because of the USCIS policy of not sharing employment information in less severe circumstances. Employers also should determine whether their employment policies or past practices entitle employees to those documents or whether they may face discrimination complaints for selectively denying access to those records.

Employment Authorization Requirements and Antidiscrimination Duties.If a former or current employee files for DACA, then previous employment was likely unauthorized. However, the previous employment of an unauthorized individual does not necessarily mean the employer violated the law.

Federal law regulates employment verification issues. Under the Immigration Reform and Control Act of 1986 (IRCA), employers are barred from knowingly hiring, or knowingly continuing to employ, someone who lacks work authorization. A knowing violation occurs when there is actual knowledge, or constructive knowledge that may be inferred from circumstances, that a person does not have work authorization. At the same time, IRCA provides a good-faith defense for employers if they complied with IRCA’s employment-verification procedures, embodied in Form I-9.19

Proper completion of Form I-9 is crucial for an employer to avoid potential liability for employing an unauthorized individual. One of the requirements for completing the form is to establish an employee’s identity and work authorization. The form provides a list of documents that establish both elements. As long as an employee provides documents from that approved list and the employer determines that they appear valid and genuine on their face, the employer can avoid a knowing violation.

Even though use of Form I-9 provides a good-faith defense to employers and provides a process for verifying employment authorization, employers may still have misgivings about hiring a previously undocumented individual or have questions about how they can be sure the person has valid work authorization. These misgivings or questions might cause an employer to inquire into individuals’ immigration history or status, adopt policies that prohibit the hiring of DACA-approved individuals, or demand specific or multiple forms of identification from individuals for use in filling out Form I-9.

Engaging in such practices would be a major mistake because doing so could expose the employer to anti-discrimination claims. For example, IRCA prohibits citizenship and national-origin discrimination, which can occur when the verification procedures for Form I-9 are improperly used to screen out authorized noncitizens. IRCA prohibits subjecting an individual to increased documentation procedures or demanding specific documents, such as a U.S. passport or Social Security card. It also prohibits refusing to hire an individual whose employment authorization is close to expiring. In addition, such practices could lead to national-origin discrimination claims under Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act. To avoid compliance and discrimination problems when DACA grantees enter the workforce, employers should evaluate these employees’ backgrounds and work documents in the same manner as used for all other individuals.

While it is beyond the scope of this article to address all the requirements of Form I-9 compliance, a good starting point for understanding the obligations and record-keeping requirements is to review the USCIS M-274 Handbook for Employers.20 Employers should also note two things: 1) Do not demand an employee’s Social Security number for Form I-9 purposes, because it is optional for the employee to provide this information; and 2) if an employee presents a valid employment authorization document, do not demand any additional documents for purposes of establishing identity or work authorization.

Informing a Current Employer of New Work Authorization. A difficult situation arises when a DACA-approved individual receives new work authorization and wants to remain with the same employer. The new employment authorization may involve a name change and a change in the Social Security number. Informing the employer of such changes may require a new Form I-9. The process will also raise sensitive questions about the authenticity of the old I-9 documentation and the employee’s truthfulness in the past.

Many employers have a policy of terminating employees who engage in a significant or material falsehood at work. Misrepresentations about work authorization or identity and using false Social Security documentation can be considered significant falsehoods. Thus, if an employer has such an honesty policy, it may not be possible for the individual to continue working for the employer.

If the employer inquires into the reasons for the documentation changes, the individual will either have to lie yet again to cover up the reasons or risk the employer discovering the truth. If the truth is discovered, the employer will have to enforce its policy consistently and terminate the individual. Making an exception would not be in the employer’s interests because the exception could be evidence in future litigation that the policy is not uniformly enforced or is discriminatorily enforced against members of certain protected groups.

Even if the employer does not have a formal policy requiring termination for a significant falsehood, discovering the facts could serve as a sufficient reason to terminate employees in at-will employment situations (in which the employer or employee can terminate the employment relationship for any reason not prohibited by law). It is doubtful such a termination would violate anti-discrimination prohibitions.

Ultimately, the toughest decisions are those confronting the individual. Does she continue working under the previous identity or documents? Does he come forward and risk termination, potentially for misconduct? Is it better to resign and start fresh, even if doing so causes a significant gap in work experience? There are no easy answers. One consideration is that for individuals 30 and younger, a gap in work experience because of a resignation may not be as severe a problem as a potential termination for misconduct, which may have to be reported on future job applications.

Conclusion

DACA offers a tremendous opportunity for many undocumented youth. As applications are approved, many successful applicants are setting out on educational and career paths they would not have otherwise been willing or able to take. However, it is unknown what will happen when grantees’ two-year reprieves expire.

Employers will be affected by the DACA policy when applicants and grantees seek old employment records, receive work authorization for new employment, or decide whether to remain with the same employer after receiving new authorization. Employers should review their legal obligations and implement compliant practices before such difficult questions arise.